On Nov. 6, the lives of LGBT Washingtonians changed for the better. Voters decided that same-sex marriage was a Washington state value, and the Evergreen State joined Main and Maryland as the first-ever states in history to approve gay marriage by popular vote. On Dec. 6, Washington began to issue marriage certificates to same-sex couples and at 12:01 a.m., Dec. 9, ceremonies were held statewide.

Gary Tabor did not join in the jubilation. In fact, Tabor has flat out refused to follow the law. Thurston County Superior Court Judge Gary Tabor has notified court personnel that he will not marry same-sex couples. Kristal Rowland, Tabor’s judicial assistant, confirmed this to Seattle Gay News on Dec. 20.

A Thurston County employee, who asked the local gay newspaper not to identify them on condition of anonymity, said the judge made his position known at a Dec. 5 meeting of judges and administrative staff.

At the meeting, senior staff indicated that the next day would likely be very busy, because it would be the first day that gay and lesbian couples could apply for marriage licenses after the passage of same-sex marriage. According to the SGN’s source, Tabor said at the meeting that he would "not be comfortable" marrying same-sex couples.

It would seem that Tabor has found a loophole: Availability.

Presiding Judge H. Christopher Wickham said, "This is just an availability issue, nothing more than that."

"Judges take weddings as available," Superior Court administrator Marti Maxwell explained. "Some only do evenings, some only do weekends, and some will even take out-of-county weddings. My boss [Wickham] says it’s not county business, it’s not court business -- it’s up to the judge."

"No regularly licensed ordained minister or any priest, imam, rabbi, or similar official of any church or religious denomination is required to solemnize any marriage," the law says.

According to his official biography on the Thurston County Superior Court website, Tabor was educated at the conservative Oklahoma Christian College, (now a university) which makes it probable that he harbors religious objections to same-sex marriage. But judges and other civil officials do not enjoy the same exemptions from the law as religious officials do.

On the contrary, Article 4, Section 28 of the Washington State Constitution requires every judge to discharge all his or her duties "impartially" and "to the best of his ability." All judges in Washington are required to swear in writing to perform their duties and to file a copy of their oath with the Secretary of State.

But attorney Katie Blinn, co-director of elections, said that the Secretary of State’s office has "no oversight" over judges.

"It’s meant as a record-keeping provision," she explained, "so if anyone wants a copy of the oath they have somewhere to go."

News of Tabor’s refusal to marry same-sex couples has not been received well by many Washingtonians. Understandably, some are asking what can be done. Surely the refusal to marry a whole class of people based on sexual orientation is much more than an availability issue.

Blinn said that if a couple wished to force Tabor to marry them, they could sue for a writ of mandamus, essentially a court order for Tabor to perform his legal duty. But Blinn added that it would be easier just to find another judge.

County auditors are required to issue marriage licenses to same-sex couples or to provide another auditor who will issue the license, so that all couples are served. Apparently judges are in a different category.

"It’s hard to compel a judge to do much of anything," Reiko Callner of the State Commission on Judicial Conduct told Seattle Gay News.

The Judicial Code of Conduct does not require judges to marry anyone, although there is a prohibition against discrimination in the code. Section 2.3 prohibits bias and prejudice, Section 2.3A requires judges to act without bias or prejudice, and 2.3B prohibits them from manifesting bias or prejudice.

Sexual orientation is a protected class in state law and that might give a same-sex couple the basis for a bias complaint against a judge who refused to marry them. Couples who believe they have been discriminated against by a judge may file a complaint with the Commission on Judicial Conduct. But Callner admits the process is complicated and designed to be deliberative and to protect both judges and complainants.

Shaun Knittel is an openly gay journalist and public affairs specialist living in Seattle. His work as a photographer, columnist, and reporter has appeared in newspapers and magazines throughout the Pacific Northwest. In addition to writing for EDGE, Knittel is the current Associate Editor for Seattle Gay News.

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